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What if your state already has a law?

When both the federal and state governments address the same situation, the stronger law applies. This means that if your state has a workplace breastfeeding law that is stronger than the federal law, your state law will overrule the "Break Time for Nursing Mothers" law in the places where it is stronger. The federal law will be enforced in all states without a state law.

To figure out what this means in your state, you need to compare each part of the two laws. The law that provides the strongest protection to you, for each part, will apply. See the example below, comparing the Colorado state law to the federal law.

First, look at the text of the two laws:

Colorado State Law: Colo. Rev. Stat. § 8-13.5-101 et seq. (2008) require an employer to provide reasonable break time for an employee to express breast milk for her nursing child for up to two years after the child's birth. The employer must make reasonable efforts to provide a place, other than a toilet stall, for the employee to express breast milk in privacy. The law also requires the Department of Labor and Employment to provide, on its website, information and links to other websites where employers can access information regarding methods to accommodate nursing mothers in the workplace. (2008 Colo., Sess. Laws, Chap. 106, HB 1276)

Federal law: Section 4207 of the law amends the Fair Labor Standards Act (FLSA) of 1938 (29 U.S. Code 207) to require an employer to provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express milk. The employer is not required to compensate an employee receiving reasonable break time for any work time spent for such purpose*. The employer must also provide a place, other than a bathroom, for the employee to express breast milk. If these requirements impose undue hardship, an employer that employs fewer than 50 employees is not subject to these requirements. The federal requirements shall not preempt a state law that provides greater protections to employees.

Then, choose the pieces of each law that apply to which employees are covered, which employees are exempt, how much time the employee can use, how many months the employee can take pumping breaks, and where the pumping breaks will happen.

Next, identify which law provides more protection for each part.

Coverage: The Colorado law covers all employees while the federal law only covers employees who are eligible for overtime pay. Because the Colorado law offers more protection by covering more employees, it overrules the federal law.

Exemption: In the federal law, an undue hardship exemption is only a possibility for business with fewer than 50 employees, but in the Colorado law all employers can apply for undue hardship. Since the federal law provides stronger protection for breastfeeding families, Colorado employers must follow federal law. In both cases, the burden is on the business to prove that providing these accommodations would cause significant hardship relative to the size and nature of the business.

Time: In both the federal and Colorado law employers are required to provide "reasonable" break time.

Duration: The Colorado law states that breastfeeding employees have the right to express milk during the work day for up to two years after the child's birth, but the federal law only requires break time for the baby's first year. Because the Colorado law offers more protection by extending the right to pump at work until the baby's second birthday, it overrules the federal law.

Space: The federal law requires employers to provide a non-bathroom space for employees to pump. Colorado only requires employers to make "reasonable efforts" to find a non-bathroom space, so the federal law will apply in this situation.

See a comparison of this information in the chart below:

  Colorado Federal Strongest coverage for each part of the law rules, so here are the rights of breastfeeding employees in Colorado:
Coverage All employees Nonexempt employees All employees
Exemption Employer must prove undue hardship Employers with fewer than 50 employees must prove undue hardship. Employers with more than 50 employees must comply. Employers with fewer than 50 employees must prove undue hardship. Employers with more than 50 employees must comply.
Time Reasonable Reasonable Reasonable
Duration 2 years 1 year 2 years
Space Employers must make reasonable efforts to find a non-bathroom space Non-bathroom space Non-bathroom space

The following states have workplace breastfeeding laws:

Please Note: The information contained in the below chart was developed from the National Conference of State Legislatures listing of Breastfeeding Laws, updated May 2011, the most recent information available at the time of publication. For up-to-date information on the laws in your state, please contact your state breastfeeding coalition.

 

State

Relevant Workplace Law(s)

Arkansas Ark. Stat. Ann. § 11-5-116 (2009) requires an employer to provide reasonable unpaid break time each day to an employee who needs to express breast milk for her child and requires an employer to make a reasonable effort to provide a private, secure and sanitary room or other location other than a toilet stall where an employee can express her breast milk. (2009 Ark. Acts, Act 621, HB 1552)
California Cal. Labor Code § 1030 et seq. (2001) provides that employers need to allow a break and provide a room for a mother who desires to express milk in private.
Colorado Colo. Rev. Stat. § 8-13.5-101 et seq. (2008) require an employer to provide reasonable break time for an employee to express breast milk for her nursing child for up to two years after the child's birth.  The employer must make reasonable efforts to provide a place, other than a toilet stall, for the employee to express breast milk in privacy.  The law also requires the Department of Labor and Employment to provide, on its website, information and links to other websites where employers can access information regarding methods to accommodate nursing mothers in the workplace. (2008 Colo., Sess. Laws, Chap. 106, HB 1276)
Connecticut Conn. Gen. Stat. § 31-40w (2001) requires employers to provide a reasonable amount of time each day to an employee who needs to express breast milk for her infant child and to provide accommodations where an employee can express her milk in private. (HF 5656)
District of Columbia D.C. Code Ann. § 2-1402.81 et seq. amend the Human Rights Act of 1977 to include breastfeeding as part of the definition of discrimination on the basis of sex, to ensure a woman's right to breastfeed her child in any location, public or private, where she has the right to be with her child.  The law provides that breastfeeding is not a violation of indecent exposure laws.  The law also specifies that an employer shall provide reasonable daily unpaid break periods, as required by the employee, so that the employee may express breast milk for her child.  These break periods shall run concurrently with any break periods that may already be provided to the employee.  Requires that an employer make reasonable efforts to provide a sanitary room or other location, other than a bathroom or toilet stall, where an employee can express her breast milk in privacy and security.  The location may include a childcare facility in close proximity to the employee's work location.  (2007 D.C. Stat., Chap. 17-58; B 133)
Georgia Ga. Code § 34-1-6 (1999) allows employers to provide daily unpaid break time for a mother to express breast milk for her infant child. Employers are also required to make a reasonable effort to provide a private location, other than a toilet stall, in close proximity to the workplace for this activity. The employer is not required to provide break time if to do so would unduly disrupt the workplace operations.
Hawaii Hawaii Rev. Stat. § 378-2 provides that it is unlawful discriminatory practice for any employer or labor organization to refuse to hire or employ, bar or discharge from employment, withhold pay from, demote or penalize a lactating employee because an employee breastfeeds or expresses milk at the workplace. (2000 Hawaii Sess. Laws, Act 227; HB 2774)
Illinois Ill. Rev. Stat. ch. 820 § 260 (2001) creates the Nursing Mothers in the Workplace Act.  Requires that employers provide reasonable unpaid break time each day to employees who need to express breast milk. The law also requires employers to make reasonable efforts to provide a room or other location, other than a toilet stall, where an employee can express her milk in privacy. (SB 542)
Indiana Ind. Code § 5-10-6-2 and § 22-2-14-2 (2008) provide that state and political subdivisions shall provide for reasonable paid breaks for an employee to express breast milk for her infant, make reasonable efforts to provide a room or other location, other than a toilet stall, where the employee can express breast milk in private and make reasonable efforts to provide for a refrigerator to keep breast milk that has been expressed.  The law also provides that employers with more than 25 employees must provide a private location, other than a toilet stall, where an employee can express the employee's breast milk in private and if possible to provide a refrigerator for storing breast milk that has been expressed. (2008 Ind. Acts, P.L. 13, SB 219)
Maine Me. Rev. Stat. Ann. Tit. 26, § 604 (2009) requires an employer to provide adequate unpaid or paid break time to express breast milk for up to 3 years following childbirth. The employer must make reasonable efforts to provide a clean place, other than a bathroom, where an employee may express breast milk in privacy. The employer may not discriminate against an employee who chooses to express breast milk in the workplace. (2009 Me. Laws, Chap. 84, HB 280)
Minnesota Minn. Stat. § 181.939 (1998) requires employers to provide daily unpaid break time for a mother to express breast milk for her infant child. Employers are also required to make a reasonable effort to provide a private location, other than a toilet stall, in close proximity to the workplace for this activity. (SB 2751) 
Mississippi Miss. Code Ann. Ch. 1 § 71-1-55 (2006) prohibits against discrimination towards breastfeeding mothers who use lawful break time to express milk.

Miss. Code Ann. § 43-20-31 (2006) requires licensed child care facilities to provide breastfeeding mothers with a sanitary place that is not a toilet stall to breastfeed their children or express milk, to provide a refrigerator to store expressed milk, to train staff in the safe and proper storage and handling of human milk, and to display breastfeeding promotion information to the clients of the facility.
Montana Mont. Code Ann. § 39-2-215 et seq. specifies that employers must not discriminate against breastfeeding mothers and must encourage and accommodate breastfeeding.  Requires employers to provide daily unpaid break time for a mother to express breast milk for her infant child and facilities for storage of the expressed milk. Employers are also required to make a reasonable effort to provide a private location, other than a toilet stall, in close proximity to the work place for this activity.
New Mexico N.M. Stat. Ann. § 28-20-2 (2007) requires employers to provide a clean, private place, not a bathroom, for employees who are breastfeeding to pump.  Also requires that the employee be given breaks to express milk, but does not require that she be paid for this time.
New York N.Y. Labor Law § 206-c (2007) states that employers must allow breastfeeding mothers reasonable, unpaid break times to express milk and make a reasonable attempt to provide a private location for her to do so.  Prohibits discrimination against breastfeeding mothers.

North Dakota

N.D. Cent. Code § 23-12-17 provides that an employer may use the designation "infant friendly" on its promotional materials if the employer adopts specified workplace breastfeeding policies, including scheduling breaks and permitting work patterns that provide time for expression of breast milk; providing a convenient, sanity, safe and private location other than a restroom for expressing breast milk; and a refrigerator in the workplace for the temporary storage of breast milk. The law also directs to the state department of health to establish guidelines for employers concerning workplace breastfeeding and infant friendly designations. (2009 SB 2344)
Oklahoma Okla. Stat. tit. 40, § 435 (2006) requires that an employer provide reasonable unpaid break time each day to an employee who needs to breastfeed or express breast milk for her child.  The law requires the Department of Health to issue periodic reports on breastfeeding rates, complaints received and benefits reported by both working breastfeeding mothers and employers. (HB 2358)
Oregon Or. Rev. Stat. § 653.075, § 653.077 and § 653.256 (2007) allow women to have unpaid 30-minute breaks during each four-hour shift to breastfeed or pump. Allows certain exemptions for employers. (HB 2372)
Rhode Island R.I. Gen. Laws § 23-13.2-1 (2003) specifies that an employer may provide reasonable unpaid break time each day to an employee who needs to breastfeed or express breast milk for her infant child.  The law requires the department of health to issue periodic reports on breastfeeding rates, complaints received and benefits reported by both working breastfeeding mothers and employers, and provides definitions.  (2003 HB 5507, SB 151; 2008 R.I. Pub. Laws, Chap. 475, HB 7906)
Tennessee Tenn. Code Ann. § 50-1-305 (1999) requires employers to provide daily unpaid break time for a mother to express breast milk for her infant child. Employers are also required to make a reasonable effort to provide a private location, other than a toilet stall, in close proximity to the workplace for this activity. (1999 Tenn. Law, Chap. 161; SB 1856)
Texas Tex. Health Code Ann. § 165.003 et seq. provides for the use of a "mother-friendly" designation for businesses who have policies supporting worksite breastfeeding. (HB 340)  The law provides for a worksite breastfeeding demonstration project and requires the Department of Health to develop recommendations supporting worksite breastfeeding. (HB 359)
Vermont Vt. Stat. Ann. Tit. 21, § 305 (2008) requires employers to provide reasonable time throughout the day for nursing mothers to express breast milk for three years after the birth of a child.  Also requires employers to make a reasonable accommodation to provide appropriate private space that is not a bathroom stall, and prohibits discrimination against an employee who exercises rights provided under this act. (2008 Vt. Acts, Act 144, HB 641)

2008 Vt. Acts, Act 203 directs the commissioner of health to convene a healthy worksites work group to identify priorities and develop recommendations to enhance collaborative learning and interactive sharing of best practices in worksite wellness and employee health management.  The work group shall examine best practices in Vermont and other states, including strategies to spread the adoption of workplace policies and practices that support breastfeeding for mothers. The commissioner is required to make recommendations in a report on healthy living initiatives to the legislature by January 15, 2009. (HB 887)
Virginia Va. House Joint Resolution 145 (2002) encourages employers to recognize the benefits of breastfeeding and to provide unpaid break time and appropriate space for employees to breastfeed or express milk.
Washington Wash. Rev. Code § 43.70.640 (2001) allows any employer, governmental and private, to use the designation of "infant-friendly" on its promotional materials if the employer follows certain requirements. (2001 Wash. Laws, Chap. 88)
Wyoming Wyo. House Joint Resolution 5 (2003) encourages breastfeeding and recognizes the importance of breastfeeding to maternal and child health. The resolution also commends employers, both in the public and private sectors, who provide accommodations for breastfeeding mothers.

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